Tolerance cannot be measured in terms of degrees of intolerance. I am essentially opposed to burning books even when they incite others to violence. But freedom is either an absolute or it is conditioned on not inciting others to violence. Anything else is rationalized bigotry.

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Thursday, January 9, 2014

The American Constitution and the Limits of Free Speech

If I refer to the American Constitution it is
because it is the template for most modern democratic nations in the way they
aspire to treat human rights – even if only in theory. That American
Constitution was approved 236 years ago, on September 17, 1787. It was created following
a war that witnessed up to five times as many people die from disease and
starvation as died in battle. There were those that felt it was not possible to
fight for liberty if human rights were ignored. However, the main driver for
the constitution was the need to provide a framework for a federal form of
government without which the thirteen original member states remained
disconnected from each other.One nation
was not possible without its unifying provisions. And it provided for civil
rights that would be consistent across the separate states.But there
are two further documents that make up America’s founding, guiding ethos
and they are the Bill of Rights and the Declaration of Independence. I will
discuss them here, later.

People were suspicious of central
authority.They were weary of the abuse
of parliament as well as kings (in this case the British one). But all kings
and their aristocratic partners existed as self-perpetuating oligarchies.

Kings and emperors aspired to the status of
earthly divinity and thereby most who ruled, demanded (and received) absolute
loyalty. Secular society had not yet
been created and even when not governed as theocratic nation states, religious
leaders inevitably bestowed the mantle of divine appointment on those who
aspired to legitimise their rule.Divine
right was a crucial imprimatur to be invoked if things did not always go the
way one intended.Bureaucratic
instruments ensured the “right kind of people” provided support; the few always
acted against the interests of the many.

And so to return to the constitution, at its
creation it did not protect the rights of slaves, Native Americans or women and
together, they remained a repressed majority.

The American Constitution, created a blueprint
for a society based on organising the nation through an administration that was
kept in check by a doctrine of the separation of powers. Its influential
opponents included prominent Founding Fathers who argued that the Constitution
failed to protect the basic rights of the people. It was John Adams who in 1788
used the phrase "Tyranny of the Majority" to describe “a scenario in
which decisions made by a majority place its interests so far above those of an
individual or minority group as to constitute active oppression, comparable to
that of tyrants and despots” (Wikipedia) and it was in response to this kind of
thinking that the Bill of Rights was enacted. And Alexis de Tocqueville brought
the term into prominence internationally when he published ‘Democracy in America’ in
1835.

It was this ongoing agitation that created the
conditions for future judicial activism.

The first ten amendments to the Constitution
are what we know as the US Bill of Rights and they became effective on December
15, 1791.

The first amendment grants “Freedom of
religion, speech, and the press; rights of assembly and petition.”

It took a long time
and very specific circumstances before inequality was tackled, even as imperfectly
as it is today.

The most controversial document of all was the
Declaration of Independence.It speaks
of Natural Rights and in the
Preamble it states that “We hold these truths to be self-evident, that all men
are created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Again, it was all about timing or at least,
those that believed in its universal application explained it as an unfinished
endeavour, a standard for perfection and one to which the Declaration
represented an ongoing ideal awaiting completion.In that way, after the fact, it became
central to both the Constitution and the Bill of Rights it preceded.

In the 18th and the 19th
Centuries, issues of personal freedom and freedom of expression did not have to
contend with mass communication, near limitless wealth and (most) weapons of
mass destruction. While it is futile to debate whether the founding fathers
would have been quite so idealistic had the conditions been different the basic
principles remain relevant even if we are too often insufficiently fast enough
to react to threats against the Society those ideals were codified to defend.

Issues of identity, lawful protest and freedom
of expression have become no-go areas that we are frightened to tackle as if
everything in history is a forward march. But it is not. A nation at war must
be able to defend itself while preserving the rule of law. Democracies have to preserve
human rights but are too often fighting a war against people and groups happy
to use the instruments of democracy to undermine (erode) and destroy those same
institutions.

The American Constitution and its
ancillary documents represent a framework for society that has stood the test
of time.But they are also ideals that
need to be protected from those whose intent it is to invalidate them. It is
not just America
that is at fault here. Ideals can be placed out of reach so that they do not
protect the people they are intended to serve. They become idols that are
worshipped for them-selves and they replace that aspect of human responsibility
without which we all live in a worshipful state of ignorance.

The most delicate balance exists between protecting the
rights of citizens and giving them the licence to destroy the society.

The right to decide what constitutes incitement
can change with the times however incitement always creates a momentum for
violence that only someone attempting to tear down the edifice of democracy sees
virtue in possessing.Our society seems
to have lost the enthusiasm to judge others as readily as others judge us.
Perhaps that is because when we are morally selective the only defence is indifference.

The challenge for society is to define the
limits of free speech: What is permissible, and what permissible language is
not. Passionate beliefs are no excuse for failing to exercise
self-control.And it is irrelevant that
some people truly believe they are endowed with divine permission to slander or
to kill. Like human sacrifice, there are some uncivilised aspects of human
behaviour best left to the professionals to explain and the law to debar.